BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 126 of 2014
Date of Institution : 1.9.2014
Date of Decision : 13.10.2016
- Raj (aged about 38 years) widow of Mohinder Kumar son of Sh. Vijay Pal.
- Sonam minor daughter of deceased Mohinder Kumar son of Vijay Pal.
- Tranjot Sharma minor son of deceased Mohinder Kumar son of Vijay Pal, minors through complainants no.1 being mother and natural guardian.
All residents of Dhani Majra, village Patli Dabar, Tehsil & Distt. Sirsa.
….Complainants.
Versus.
- The New India Assurance Co. Hisar Road, Near Bus stand through its Divisional Manager, Sirsa.
- Divisional Manager The New India Assurance Co. Hisar Road, near Bus Stand.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA………………………….PRESIDENT.
SHRI RANBIR SINGH PANGHAL…. MEMBER.
Present: Sh. Ravinder Monga, Advocate for the complainants.
Sh.A.S.Kalra, Advocate for the opposite parties.
ORDER
The facts arisen out from the present complaint are that husband of complainant no.1 and father of complainants No.2 & 3 namely Mohinder Kumar was owner of a Jeep bearing registration No.HR38J/3940 and he was enrolled as a contractor with the Sirsa District Cooperative Milk Producer Union Ltd. Begu road, Sirsa. He was doing the work of transportation of milk for the different destinations. Besides this, he was doing the job of lifting the dirty water nearby the villages on the contract basis. The family members were totally dependent upon the income of Mohinder Kumar, now deceased. On 9.11.2007, he met with an accident at about 12.30 a.m. in the jurisdiction of Police Station Ding, Distt. Sirsa. An FIR No.248 dated 9.11.2007, under Sections 279, 337, 304-A IPC was registered against one Mukhtiar Singh son of Mool Singh driver of truck No. RJ31G/3794. On account of injuries sustained by Mohinder Kumar, he died on the spot and post mortem examination was conducted on his dead body. The Jeep which was insured with the ops vide policy No. 353700/31/06/01/00009453 was also totally smashed/ damaged in the accident and its survey was got conducted by Sh. V.K. Grover, approved Surveyor and Loss Assessor. The said Surveyor has assessed the total loss of Jeep to the extent of Rs.2,20,080/- i.e. sum insured of the policy. At the time of issuing the policy in favour of Mohinder Kumar, the ops charged a total sum of Rs.10,704/- as premium as per the schedule under the package while covering the risks. In the policy, the risk of compulsory personal accident to owner-cum-driver has been covered to the extent of Rs.2 lac against amount of Rs.100/- and the ops are legally bound to pay the amount of risk as covered under the policy. However, the ops never paid any heed to the requests of complainants to pay personal accident claim and claim of damaged jeep. The officials of ops assured to the complainant that her matter is in process and very shortly she will get the response of the same. The complainants kept awaited for the intimation from the side of ops and finally she lodged a written claim with the ops on 17.12.2007 but to no avail and the ops caused mental harassment and adopted unfair trade practice towards the complainants. Then complaint No.266 of 2008 was instituted on 30.5.2008 and after contest of the same by ops, the same was disposed of on 23.2.2012 with the direction to the complainants to lodge the claim with the insurance company within one month and the insurance company would attend to the case of the complainants and dispose of the case within two months from submission of the claim in accordance with law. If the case is not disposed of within the stipulated period or any other grievances, the complainants may approach the Forum again. However, the ops did not initiate any step for compliance of the said order dated 23.2.2012 despite written requests and reminders and preferred to write a letter to the complainant by adopting technicalities with a view to create hurdles for non compliance of the order dated 23.2.2012 and finally with the pre-determined mind, the ops have repudiated the claim through letter dated 14.5.2012, which is unjust, unfair, arbitrary and illegal and liable to be set aside. The complainants also filed an application under Sections 25/27 of the Act and the Forum while coming to the conclusion of the letter dated 14.5.2012 disposed of the execution with the observation that if the complainant is dis-satisfied with the repudiation, then he has already been allowed to file fresh complaint to challenge the repudiation. Hence, the present complaint for setting aside the repudiation letter dated 14.5.2012 and for a direction to the ops to release the death claim to the extent of Rs.two lac alongwith interest and to release the amount of loss to the insured Jeep alongwith interest and to pay a sum of Rs.50,000/- as compensation to the complainants. They be further directed to pay a sum of Rs.20,000/- as exemplary costs and to pay a sum of Rs.11,000/- as litigation expenses.
2. Opposite parties in their written statement pleaded that complaint is time barred as order of repudiation has been passed by answering ops on 14.5.2012 while complying with the order passed by this Forum on 23.2.2012. In the order dated 23.2.2012, complainants were allowed to file fresh complaint to challenge the repudiation or non compliance of order, but complainants did not file any complaint before this Forum within stipulated period granted by the Act. The complainants are not entitled for the damages of vehicle as well as personal accident claim as vehicle was registered and insured and plied on road for commercial use, goods carrying transport vehicle and deceased Mahinder Singh was not having valid and effective driving licence to drive transport/commercial vehicle, as deceased was holding the driving licence to drive motorcycle, scooter, car, Jeep and tractor only. Hence, the claim was treated as No Claim, as intimated vide letter dated 14.5.2012. No intimation regarding damages has been given and claim was never ledged with company prior to 5.3.2012, so question of appointing any Surveyor by company does not arise and if anything has been got done on her level by the complainant no.1, same is not binding upon ops. The insurance company does not have any liability either for payment of O.D claim or for payment of personal accident. Remaining contents of the complaint have been denied.
3. By way of evidence, complainant no.1 produced her affidavit Ex.C1, and documents Ex.C2 to Ex.C22 and photographs of accidental Jeep Ex.C23 to Ex.C42. On the other hand, ops have tendered affidavit Ex.R1 and documents Ex.R2 to Ex.R11.
4. We have heard learned counsels for both the parties and have gone through the case file carefully.
5. The only question to determine in the present complaint is whether the complainants are entitled for death claim of Mohinder and for total loss value of the damaged insured Jeep bearing registration No.HR38J/3940 from the ops. Admittedly, the vehicle in question i.e. Jeep was got insured by Mohinder Kumar for goods carrying as is evident from certificate of insurance Ex.R10 and necessary fees for carrying goods on the vehicle No. HRE-38J/3940 was being paid to the office of Excise and Taxation Office as is evident from document Ex.C17. In the column of Persons or classes of persons entitled to drive in the certificate of insurance Ex.C6 it is mentioned that any person including insured provided that a person driving holds an effective driving licence at the time of accident. Admittedly, at the time of accident the vehicle in question was being driven by deceased Mohinder Kumar and in his driving licence, he was only authorized to drive Motorcycle/scooter, car/jeep and tractor only and there is no endorsement of any licensing authority on the driving licence of Mohinder Kumar that he was ever authorized to drive commercial vehicle/ goods carrying vehicle meaning thereby that he was not authorized to drive the commercial vehicle and therefore, driving of commercial vehicle by said Mohinder Kumar without valid and effective driving licence was violation of the terms and conditions of the insurance policy.
6. Learned counsel for complainant has contended that deceased Mohinder Kumar was having valid driving licence for LMV and therefore, was authorized to drive light goods vehicle and relied upon the authority of Hon’ble National Commission in case titled as New India Assurance Co. Vs. Hemant S. Handre, 1998 (1) CPJ 61, authority of Hon’ble Delhi High Court in case titled as New India Assurance Co. Ltd. Vs. Brijesh Maji @ Viresh and others, 2008 (4) TAC 699, decision of Hon’ble Rajasthan High Court in case titled as Bajaj Allianz General Insurance Co. Ltd. Vs. Shankar Lal and Ors. 2011 (4) W.L.N. 279 and decision of Hon’ble Supreme Court of India in case titled as National Insurance Co. Ltd. Vs. Sri Annappa Irappa Nesaria & Ors. C.A. No.574 of 2008 decided on 22.1.2008. Whereas, learned counsel for opposite parties has relied upon judgment of the Hon’ble National Commission in case titled as ICICI Lombard General Insurance Co. Ltd. Vs. Mainuddin, I (2015) CPJ 328 (NC) and has contended that cases relied upon by learned counsel for complainant relates to the situation which was prior to the amendment in the Motor Vehicle Act on 28.3.2001. We see substance in the contention of learned counsel for ops. The authorities cited by learned counsel for complainant pertain prior to the amendment in M.V. Act and are not applicable in this case.
7. As a result of our discussion, we are of the view that the present complaint deserves dismissal. We order accordingly. No order as to cost. A copy of this order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated:13.10.2016. Member. District Consumer Disputes
Redressal Forum, Sirsa.
